International Law - Law and u.s. foreign policy approaches

Public attitudes in the United States toward the utility of international
law have shifted with its government's perceptions of how the
United States best fits into the world scene. At the same time, government
officials do not agree to international legal rules in a political
void—domestic political considerations and national interests
figure prominently, and often preeminently, in negotiating legal
instruments. Historically, the propensity of U.S. government officials for
creating legal rules was caught in the tension between two opposing policy
approaches—isolationism and internationalism. Up until 1940 these
approaches were more or less cyclical throughout American history. Since
then the East-West ideological rivalry of the Cold War, escalating
international economic interdependence, and ever-increasing technological
globalization have combined to render the internationalist approach
politically, commercially, and legally imperative for the United States.

Isolationism reflects the belief that the United States should avoid
getting involved in the political affairs of other states. This rejection
of foreign political involvement was not meant to imply that the United
States should ignore the rest of the world. Indeed, diplomatic and
commercial contacts were critical for the United States as it developed
throughout the nineteenth and early twentieth centuries. In these
respects, international legal rules and multilateral instruments assumed
cardinal importance in rendering American foreign policy practical and
effective. Instead, from the isolationist perspective, American national
interests are best served by withdrawing from the rest of the world, or at
least remaining detached from events elsewhere. In this regard,
international legal rules play only a minimal role. Less international
involvement abroad results in less interest in world affairs and fosters
the perception that the United States has little need to be bound by
international law.

Isolationism draws its inspiration from George Washington's
Farewell Address of 1796, in which he admonished Americans to
"steer clear of permanent alliance with any portion of the foreign
world." This tendency to avoid foreign involvement was fueled by
the fact that, save for the War of 1812, the United States was never
physically endangered by foreign military attack, and a sense of physical
security from the threat of foreign intervention prevailed. Later, the
horrors of the Civil War fostered a less militaristic attitude within the
American political culture. When combined, these attitudes contributed to
the isolationist impulse and a relative indifference to international
legal concerns. Among the major isolationist foreign policy decisions that
heavily impacted on principles of international law are the Monroe
Doctrine (1823), the refusal to join the League of Nations (by the U.S.
Senate's rejection of the Treaty of Versailles in 1919), the
neutrality laws of the 1930s, and the legacy of the Vietnam syndrome, that
is, the reluctance to commit American troops abroad.

The internationalist perspective sees the protection and promotion of U.S.
national interests through pursuit of a legally based, activist, global
foreign policy. Internationalists argue that the United States cannot
escape the world. Events in other places inevitably encroach upon U.S.
interests, and policy rooted in the retreat from global involvement is
self-defeating. Thus, the United States has a stake in the general nature
of the international system, and its government must be willing to become
actively involved in world affairs on a regular basis. To bolster this
contention, internationalists point to the Great Depression of the 1930s,
the rise of Hitler in Europe, the outbreak of World War II, and the
expansion of communism in the war's aftermath. Hence, the United
States must be involved in world affairs. To this end, international law
provides proven conduits for integrating U.S. national interests into
constructive foreign policy opportunities. American national interests are
best served by remaining active internationally and by negotiating legal
rules that promote foreign policy goals as they foster international
order. Evidence that internationalism best serves U.S. national interests
is seen in the preeminent place of the United States since 1945 in
establishing the United Nations, the North Atlantic Treaty Organization
(NATO), and many other international organizations; in promoting the
Marshall Plan and the Helsinki Human Rights Agreement; in U.S. involvement
in armed conflicts in Korea, Vietnam, the Persian Gulf, Bosnia, and
Kosovo; and in vigorous support of a massive expansion of U.S.
international trade relations. In all of these areas, the ways in which
the United States employed international legal rules proved critical for
implementing its foreign policy in ways acceptable to international
society.

The war in Vietnam frayed American confidence about internationalism in
general and the containment doctrine in particular. The tremendous human,
financial, and political costs traumatized the American people, gave rise
to a domestic antiwar movement, and undermined the faith of Americans in
their government. More than 58,000 American lives were lost, and four
million Vietnamese on both sides were killed or injured. Over eleven years
the war cost the United States approximately $150 billion to fight and
lose. Consequently, since 1975 American attitudes have been ambivalent
toward activist internationalism. On the one hand, the realization
persists that as the world's only superpower, the United States
retains a special responsibility for maintaining international peace and
security. But, on the other hand, the American people are profoundly
reluctant to support long-term commitments of American blood and treasure
abroad to defend other states, especially those with little strategic
value to the United States. American government officials therefore are
wary about sending U.S. forces abroad and have done so only in selected
cases. They are fully aware that a high political price can be incurred
for American soldiers coming home in body bags—namely, defeat in
the next general election.

Isolationism and internationalism have both shaped the course of American
foreign policy and determined the relative degree of importance that
international law has assumed in policy formulation. Both approaches are
joined in the conviction that international law should be used to serve
and protect the institutions and ideals of the American experience. The
approaches differ, however, on how to achieve these national ambitions.
Isolationism aims to insulate the American experience from the corruption
of foreign influences and protect U.S. sovereignty from burdensome
international commitments. The isolationist approach attributes little
utility to international law, except insofar as it segregates the United
States from extraterritorial commitments and facilitates the
government's foreign relations to secure needed resources and
sustain trade relations. Conversely, internationalism works to attain U.S.
policy goals by promoting a more stable global environment for the United
States, which opens the door to foreign opportunities to fulfill American
political, economic, and legal interests. To these internationalist ends,
international law assumes a more fundamental, more comprehensive place in
U.S. foreign policy. International legal rules become channels for closer,
more regularized international contact as well as regulatory standards
that encourage such cooperation. Regardless of the approach taken,
consideration of and regard for international legal rules remain important
in the process and formulation of American foreign policy.